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California Becomes First State To Eliminate Bail Before Trial

Sen. Bob Hertzberg (D-Van Nuys) holds a press conference on SB 10, his bill that would end cash bail in California, in this undated photo.
Ben Adler/Capital Public Radio
Sen. Bob Hertzberg (D-Van Nuys) holds a press conference on SB 10, his bill that would end cash bail in California, in this undated photo.
California Becomes First State To Eliminate Bail Before Trial
California Eliminates Bail Before Trial GUEST: Summer Stephan, San Diego County District Attorney

Our top story on Midday Edition, California is once again leading the nation this time in the effort to eradicate the cash bail system. Governor Jerry Brown has signed Senate Bill 10 which will end cash bail in the state and replace it with a system of risk assessment. Here's the bill's author Democratic State Senator Bob Hertzberg of Los Angeles what should happen to the individual. From the time of arrest from the time handcuffs report on until the time of trial they're innocent until proven guilty. What do we do. Why should they be locked up in jail. Why should they lose their liberty before a jury has made a determination as to whether or not they're guilty or not. Supporters of the move have argued that using money to determine who gets out of jail before a trial is inherently unfair. Poor defendants are sometimes left for weeks and months behind bars because they can't make bail. But the new risk assessment policy is a work in progress. Much of it to be determined by each individual county. Joining me is San Diego County District Attorney Sommer Stefan Sommer welcome to the program. Thank you. On this important topic this morning now the major criticism of the cash bail system has been that it creates an an equal system of justice when the poor have to stay in jail until trial. But people with more funds can bail out. Do you think that's been a fair criticism. I think it is a fair criticism and is something that's been of great concern to me. There is nothing that has upset me more in my career than seeing a rich child predator prancing around Awda custody when I know that with their predatory behavior someone is at risk because they could make bail and then someone that has a drug offense you know drug sales are something that can be viewed as serious but not nearly in the same dangerous category. Not being able to make bail. Now can you give us a sense of the percentage of people in San Diego who remain in jail because they can't make bail. Yes I can. Something I track very closely and Maureen these numbers have really shifted so we are an outlier in San Diego we don't look the way the rest of the state looks for the last year we've worked very hard with the sheriff with the public defender and the courts and we created our own version of SB 10. And it's really something that makes us more comfortable that despite all of the burdens that SB 10 will put on us that we're already a little ahead of the game. So for example as of last night when I checked the numbers there were about 5100 individuals in our county jail and 80 percent of them were post conviction meaning they are not people awaiting trial. Only 20 percent are awaiting trial on off those a very important number is 85 percent are facing serious or violent felonies. So they're the kind of people that under SB 10 would also be in custody. It sounds as if you're you have been trying to approach this even before the bill was signed and went into law. How what is your office going to do now to try to implement the new SB 10 law. So we're ahead of that in that we already have a risk assessment tool that seems to be working well that balances the risk and safety of the community with the defendants rights. So we're hoping that that a validated tool will continue to be used because it's been tested for a year. But some of the issues with this law is it doesn't give counties their own ability to operate and to use the good that's already been done in San Diego that has made us a model already in that it says that no law enforcement agency can do the assessments currently non sworn officers of the sheriff's department do these assessments and they do them very well. So having to start over and pay money and find the funding only 15 million dollars from what we can see has been allocated for this very expensive sea change across the state. What actually is the process when someone is arrested and brought into jail. And and law enforcement is trying to determine what kind of risk this person might pose to the public. So most validated risk assessment tool use categories that are static which means that they are not affected by somebodies wealth or what area they come from or by the color of their skin or worse. So they look at has the person previously failed to appear to court on. And that's a big one what are the level of threat. What kind of crime is it serious violent. Has there been a prior crime within the last year is the person on probation or parole and then the second big part can we trust them while they're out not to commit another crime. Now the ACLU once a supporter of this plan is now against the new legislation. They believe it gives judges too much discretion in who gets out of jail and who stays in jail. Here's Margaret Dooley's Samuela who's a campaign strategist for the ACLU in San Diego and Imperial Counties. The ACLU is very concerned that SB 10 would allow for pre-trial detention or disparities are races so that people would be not getting equal unfair treatment. Do you think judges and prosecutors have too much discretion in this new system. What it looks like in essence to break it down is most misdemeanor crimes are going to be automatically released without any judgment by a prosecutor or a judge to keep them in. So within 12 hours that's what the law says there's no risk assessment they're essentially released except for certain categories of misdemeanor crimes like domestic violence. And actually there are missing categories that we're hoping to see added for example misdemeanor sex offenders. They can be released within 12 hours. Those are the flaws. If you are a medium risk offender you've tested as a medium risk. Then comes the the ability of the counties to create systems by which they can be released safely through supervised release or otherwise where the discretion comes in is really the category of crime that would stay in in most cases anyhow. Those are the serious and violent offenses. Now the bail bond industry is vehemently opposed to this new law. Is there anything you think we lose if that industry is eliminated if we do our job correctly. And this of course places a whole new level of hearing and responsibility on the district attorney to file these motions in every case rather than rely on bail and other things. But I look at I just read it from the eye. Is there a victim's rights voice in this. Is there a balance between the offender's rights and public safety. When do you see the absolute end of cash bail here in San Diego. It would end on October 1st of 2019. So. So that is when this law SB 10 goes into effect in San Diego. Cash bail is already tremendously reduced because as compared to the rest of the state we're 50 percent of offenders are in custody awaiting trial in San Diego. Only 20 percent are awaiting trial. And in my mind most of them should not be released anyhow. I've been speaking with San Diego County District Attorney Summer Stephan, Summer thank you. Thank you.

California will become the first state to eliminate bail for suspects awaiting trial under a bill signed Tuesday by Gov. Jerry Brown.

The bill will replace bail with a risk-assessment system, although it’s still unclear how the system will work. It will take effect in October 2019.

Brown’s signature gives the state’s Judicial Council broad authority to reshape pretrial detention policies.


RELATED: California’s Bail System Is ‘Unsafe And Unfair,’ Study Finds

Each county will use the council’s framework as a basis to set its own procedures for deciding whom to release before trial, potentially creating a patchwork system based on where a suspect lives.

Most suspects arrested for nonviolent misdemeanors will be released within 12 hours of being booked under the new law. Those facing serious, violent felonies will not be eligible for pretrial release.

The legislation gives officials 24 hours to determine whether other suspects should be released before trial. That time can be extended by 12 hours if necessary.

California Becomes First State To Eliminate Bail Before Trial

Some criminal justice reform advocates worry defendants will spend weeks in jail while their lawyers try to prove they deserve to be set free.


Opponents of the legislation say it gives judges too much power. Some worry dangerous people will go free and won’t return for trial.

Supporters, including the Judicial Council headed by the state Supreme Court’s chief justice, say the change will end the unfair practice of imprisoning people simply because they are poor. Incarceration should instead depend on the risk a defendant poses if they are released, they argue.

Other states such as New Jersey and New Mexico have overhauled their bail systems, although neither state has completely eliminated bail.

The Judicial Council is the policy-making body for California’s courts. It creates rules and procedures to ensure consistency across the state.

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